On standards of review

In Evans v. Eaton Corp. Long Term Disability Plan, Judge Wilkinson wrote this on standards of review:

"The purpose of standards of review is to focus reviewing courts upon their proper role when passing on the conduct of other decisionmakers. Standards of review are thus an elemental expression of judicial restraint, which, in their deferential varieties, safeguard the superior vantage points of those entrusted with primary decisional responsibility. The clear error standard, for example, protects district courts’ primacy as triers of fact. See Anderson v. Bessemer City, 470 U.S. 564, 574-75 (1985). AEDPA’s reasonableness standards protect state courts’ authority over state criminal convictions. See 28 U.S.C. § 2254(d) (2000). Chevron deference, like the Administrative Procedure Act’s arbitrary-and-capricious and substantial evidence standards, protects agencies’ authority in carrying out the missions for which they are created. See 5 U.S.C. § 706 (2000); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Rational basis review protects the political choices of our government’s elected branches. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993) (calling the standard "a paradigm of judicial restraint"). And trust law, to which ERISA is so intimately linked, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989), uses the abuse of discretion standard to protect a fiduciary’s decisions concerning the trust funds in his care. See 3 Restatement (Third) of Trusts § 87 (2007).

The precise definitions of these various standards, the nuances separating them from one another, "cannot be imprisoned within any forms of words" for "we cannot escape, in relation to this problem, the use of undefined defining terms." Universal Camera Corp. v. NLRB, 340 U.S. 474, 489 (1951) (Frankfurter, J.). But what these and other such standards share is the designation of a primary decisionmaker other than the reviewing court, and the instrument, deference, with which that primacy is to be maintained."

Then, he applied the standard of review to reverse the District Court's conclusion in an ERISA benefits case.

On Judge Hogan

Last month, I mentioned Judge Thomas F. Hogan of the United States District Court for the District of Columbia in a post, and now I read here in the Post that that he is taking senior status.

The story begins:

"On the wall of his chambers looking out on the U.S. Capitol, U.S. District Chief Judge Thomas F. Hogan has a treasured keepsake -- a framed picture of Ronald Reagan, doubled over in a laughing fit.

Fred Fielding, who was the White House counsel at the time, sent Hogan the photo of Reagan guffawing in the Oval Office with his advisers shortly after he appointed the young trial lawyer to the federal bench in 1982. A note is scribbled alongside the picture:

'Dear Tom,

We all thought your judgeship was a great idea.'"

The swallows and the crystal ball

Today, in John R. Sand & Gravel Co. v. U.S., the Supreme Court by 7-2 vote held that the statute of limitations for a claim against the U.S. under 28 U. S. C. §2501 could not be waived.

Distinguishing other cases where the limitations statutes for claims against the Government were held to be waivable, or subject to equitable estoppel, Justice Breyer concluded: "But these few swallows cannot make petitioner’s summer."

Justice Stevens and Justice Ginsburg thought the later cases were better-reasoned, and provided a basis for overruling the old cases to the contrary.

In her separate dissent, Justice Ginsburg invoked the crystal ball:

"Several times, in recent Terms, the Court has discarded statutory decisions rendered infirm by what a majority considered to be better informed opinion. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. ___, ___ (2007) (slip op., at 28) (overruling Dr. Miles Medi-cal Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911)); Bowles v. Russell, 551 U. S. ___, ___ (2007) (slip op., at 9) (overruling Thompson v. INS, 375 U. S. 384 (1964) (per curiam), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215 (1962) (per curiam)); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U. S. 28, 42– 43 (2006) (overruling, inter alia, Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488 (1942)); Hohn v. United States, 524 U. S. 236, 253 (1998) (overruling House v. Mayo, 324 U. S. 42 (1945) (per curiam)). In light of these overrulings, the Court’s decision to adhere to Kendall, Finn, and Soriano — while offering nothing to justify their reasoning or results—is, to say the least, perplexing. After today’s decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior deci-sions interpreting legislative texts."

More on Moore v. Com., the Rule 5A:12 case

AL&P has a post about my post, and their title is Virginia sua sponte converts criminal procedure nerdery to jurisdictional oppression.

Better than a bake sale

In the works for this legislative session is a provision that would amend the charter for the City of Martinsville to specify what happens if the City sells something it owns (like, a cable system?) for $10 million to $20 million.

Kentucky Speedway loses anti-trust claim against NASCAR

Today in the E.D. Ky., Senior Judge Bertelsman granted NASCAR summary judgment on the anti-trust claims brought by the Kentucky Speedway, LLC., Case No. 05-138, over NASCAR's refusal to let the Kentucky track have a NEXTEL cup race.

The Court concluded that "a producer of a product is free under current antitrust laws to select its distributors and to refuse to deal with would-be distributors, no matter how worthy or deserving they may be. Even more fundamentally, in order to establish both its antitrust claims, Speedway was required to prove relevant markets through qualified expert testimony as part of its prima facie case. This it failed to do, after being given a sufficient opportunity. Thus, summary judgment is appropriate."

On the second issue, the Court concluded that the plaintiff's expert's testimony flunked the Daubert test.

Here is one small article on the case.

Story of the day

The Bristol paper has this story of a boy from Abingdon who enjoyed the Show Us the Cow contest in his final days.

Funky No Child Left Behind ruling from the Sixth Circuit

In Pontiac School District, et al. v. Secretary of the United States Dep’t of Educ., a a split panel of the Sixth Circuit let some local school boards off the hook from compliance with the federal No Child Left Behind Act. The majority opinion begins:

"This case requires us to decide a fundamental question of federal versus state funding under the No Child Left Behind Act of 2001 (“NCLB” or “the Act”), 20 U.S.C. §§ 6301–7941. Plaintiffs-Appellants are school districts and education associations that receive federal funding under NCLB in exchange for complying with the Act’s various educational requirements and accountability measures. Based on the so-called “Unfunded Mandates Provision,” which provides that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a), Plaintiffs filed suit in district court against the Secretary of Education seeking, among other relief, a judgment declaring that they need not comply with the Act’s requirements where federal funds do not cover the increased costs of compliance. The district court concluded, however, that Plaintiffs must comply with the Act’s requirements regardless of any federal-funding shortfall and accordingly granted the Secretary’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Because statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion."

The dissent says the rulings lets the local schools boards have their federal money without complying with the strings attached to it, and that's wrong.

Why Hillary Clinton will outlaw the Super Bowl and perhaps the entire month of January

If Ms. Clinton could turn the page over to February, I'd say she would have done it by now, this year and many of the years past. What I wonder is why anyone would want her as the candidate, with all the tired old whacky background, mixed in with these Super Bowls -

January 26, 1992: Washington Redskins beat Buffalo Bills, 37-24, in Super Bowl XXVI. Later that same day, Bill and Hillary Clinton appear on Sixty Minutes, to save his campaign by defusing the bimbo eruption (borrowing the phrase of Betsey Wright) of Gennifer Flowers, as described here. Years later, in his deposition for the Paula Jones case, Bill Clinton acknowledged that he had shacked up with Ms. Flowers, which some took to mean that he lied to save his campaign on Super Bowl Sunday.

January 31, 1993: Dallas Cowboys beat Buffalo Bills, 52-17, in Super Bowl XXVII. In the previous week, President Clinton named wife Hillary Clinton to head the task force that came up with their ill-fated health care proposal of 1993.

January 30, 1994: Dallas Cowboys beat Buffalo Bills, 30-13, in Super Bowl XXVIII. A couple of weeks earlier, President Clinton asked Janet Reno to appoint the special prosecutor to investigate Whitewater, as described here, which special prosecutor was ultimately succeeded by Kenneth Starr.

January 29, 1995: San Francisco 49ers beat San Diego Chargers, 49-26, in Super Bowl XXIX. Earlier in the month, the 104th Congress began, with the Republicans in the majority in both houses for the first time since the Eisenhower administration, having gained 54 seats in the mid-term referendum on the Clinton presidency.

January 28, 1996: Dallas Cowboys beat Pittsburgh Steelers, 27-17, in Super Bowl XXX. Two days earlier, Ms. Clinton becomes first First Lady to give testimony before a federal grand jury, on subjects including the mysterious reappearance of Rose Law firm billing records, as described here.

January 26, 1997: Green Bay Packers beat New England Patriots, 35-21, in Super Bowl XXI. Earlier in the month, the 105th Congress took over, still with a Republican majority despite President Clinton's re-election, and this is the Congress which passed the Iraq Liberation Act, signed by President Clinton the next year.

January 25, 1998: Denver Broncos beat Green Bay Packers, 31-24, in Super Bowl XXXII. The next day, President Clinton held a press conference and delivered the phrase, "I did not have sexual relations with that woman, Miss Lewinsky," the subject of this page. The day after that, Ms. Clinton declares the whole thing a "vast right-wing conspiracy," leaving history with two famous phrases from the Clintons in one week.

January 31, 1999: Denver Broncos beat Atlanta Falcons, 34-19, in Super Bowl XXXIII. Four days earlier, the United States Senate by a vote of 44-56 rejected a last-ditch motion by Senator Robert Byrd of West Virginia for pre-trial dismissal of the impeachment proceedings against President Clinton, as shown in Congressional Record Vol. 145, No. 15.

Of Miner and Minor

After mulling it over for a few years, I have actually ordered a copy of The Minor Family of Virginia, listed on this page.

Since this book by John B. Minor was published in 1923, I don't know, however, whether I could use it to prove kinship to the Chicago lawyer named Judson Miner, who according to this article hired Barack Obama to his first job out of law school.

Fourth Circuit affirms denial of post-conviction relief in Winchester death penalty case

In Bell v. Kelly, the Fourth Circuit in a 19 page opinion by Judge Shedd, joined by Judges Niemeyer and Duncan, affirmed the decision by Chief Judge Jones of the W.D. Va. to deny the petition for habeas corpus of Edward N. Bell, who was sentenced to death in state court for the murder of a Winchester police sergeant in 1999.

The legendary D'Antoni

From the Arizona Republic, here is a delightful profile of Lewis D'Antoni, still living in West Virginia at age 94, the father of the head coach (and assistant coach) of the Phoenix Suns.

The article says in part:

"Lewis D'Antoni, who turned 94 on New Year's Eve, is a legend in this small coal-mining town nestled among the Appalachians. His daughter, Kathy, an education official, recently gave a speech to the Rotary in nearby Bluefield, and upon conclusion she asked whether anyone had a question.

No one raised a hand, which Kathy found odd. Everyone understood everything perfectly?

Finally, an older gentleman raised his hand.

"You any relation to Lew D'Antoni?"

"Yes," Kathy said. "I'm his daughter."

"Well, I tell ya what," the man said, "if he was playing ball today, he'd be making $80 million a year. The best ballplayer ever to come out of here.""

That Rotary meeting sounds like a Bristol Lions club meeting I once attended, where the wife of one of the members gave a sincere but somewhat tremulous presentation about some charitable enterprise, then opened the floor for questions - all of which were about why a good looking woman like her married such a bum.

On Judge Wood

The Staunton paper has this report on the retirement of Augusta County Circuit Court Judge Thomas Wood, a good man and good judge, to my observation.

Last week's Virginia Court of Appeals opinion on questions presented

The en banc opinion in Moore v. Com. is about the appellant's lawyer citing the wrong legal standard in stating the questions presented under Rule 5A:12, and thereby failing to present a question using the right legal standard, with the result that the case was booted without a decision on the merits.

According to the dissent, the majority came up with this 5A:12 issue "for the first time sua sponte following argument on rehearing en banc." The panel decision did not address the sufficiency of the statement of the questions presented.

Judge Humphreys in his concurrence explained: "Some might suggest our disposition of this case is an overly technical application of our Rules. However, under the constitutional and statutory scheme under which we operate, we must decide cases based upon the issues appellants present to us, not the issues they might or should have presented. At both the trial and appellate level, our system of justice is inherently an adversarial system and the courts may not properly assume the role of an advocate for either party."

Judge Petty wrote that's all well and good, but the record is not as clear that the right legal standard was not raised: "While it is clear that appellant employed the irrelevant probable cause standard in his question presented, it is also clear that all parties involved in this case addressed the relevant standard of reasonable suspicion in arguing and deciding the case. . . . In his opening brief, appellant argued that the officer had neither probable cause nor reasonable suspicion to justify the stop. The Attorney General understood the issue, rephrased the question presented to state the correct constitutional standard, and went on to address it. In a published decision, a panel of this Court decided the case on the merits. Finally, we never asked appellant to address the issue at oral argument. Simply put, at no time prior to our decision did the form of the question presented raise any concern."

An interesting combination of dissenters, Elder, Felton, and Beales, were of the view that the lawyer's statement of the question was close enough to put before the Court the issue of whether the failure to suppress the disputed evidence was legal error, and that should be close enough.

The majority's decision reinforces the idea that clarity of expression is the essence of the lawyer's art. Even so, this decision strikes me as mostly wrong. It creates incentive to waste words in an effort to cover all bases. I wondered why a petition I got in a recent Virginia Supreme Court case had the same issue restated five different ways, but maybe now I know. Also, the sua sponte aspect is troubling - after multiple layers of briefing, argument, and decision, the appeal gets whacked on some new issue without a word of oral or written argument. There is something contradictory about a decision that says, on the one hand, the Court can only act on what the lawyers define as the question presented, yet on the other hand the Court can decide what is the question presented without considering the lawyers' views.

If the case goes to the next level, I wonder how the requirements of Rule 5:17(c) will be addressed. Opinions such as in Haugen v. Shenandoah Valley Dept. of Social Services, 645 S.E.2d 261 (Va. 2007) suggest some cause for optimism on this procedural issue, but there are others not so friendly. Somewhat surprisingly, there's not much about Rule 5:17 as the ancestor of 5A:12 in any of the four opinions.

The Federal courts have a somewhat similar rule in Rule 28(a)(5), but I'm not aware of any case where a federal appeals court has applied this rule to boot an appeal where the substantive argument was addressed in the body of the brief - not that Virginia's appeals courts much care about what other courts do. See generally Wright, Miller & Cooper, 16A Fed. Prac. & Proc. Juris.3d § 3974.1. I argued Rule 28 one time where the pro se appellant didn't put anything in his brief but references to the arguments made in the District Court, citing Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448 (6th Cir. 2003), in which the Sixth Circuit "joined the other circuits in concluding that the requirements of Rule 28 may not be satisfied by reference to court papers filed in the lower court." What did I get? An order from the Sixth Circuit directing the appellant to fix his brief.

Magistrate Judge Welsh recommends enforcing arbitration clause in title loan contract

In Reel v. Anderson Financial Services, LLC, Magistrate Judge Welsh of the W.D. Va. recommended that the District Court should grant the defendant's motion to compel arbitration, rejecting the plaintiff's argument that the arbitration clause in the contract, a "Motor Vehicle Line of Credit" was unenforceable. Among other things, the judge concluded that the plaintiff could not show that the arbitration clause was unconscionable. The analysis is consistent with, although in some ways dissimilar, from the reasoning in the recent Third Circuit case applying Virginia law in somewhat similar circumstances.

On Virginia v. Moore

Later this month, the Supreme Court will hear oral argument in the case of Virginia v. Moore, about Tom Goldstein has this post with links to the briefs of the Commonwealth and the respondent. The brief for the U.S. is here, the brief for the ABA is here, the brief for the VTLA is here.

In this case, the defendant Moore was arrested, instead of being given a summons, under circumstances where Virginia law requires that he be given a summons, and so the issue is whether for purposes of the Fourth Amendment the search incident to his unlawful but not unconstitutional arrest was unreasonable and the evidence obtained subject to exclusion.

The en banc Virginia Court of Appeals by 7-4 vote said the evidence was in, the Virginia Supreme Court said it was out.

It is an interesting area, the relationship between the guarantees of the Bill of Rights and state law. We know that in the area of property rights, state law defines whose property is whose, but federal law defines what process is due in connection with deprivations of property. State law defines what the crimes are, but federal law defines what is an unreasonable seizure in connection with persons suspected of committing state law crimes. Doesn't it?

Suppose the General Assembly takes an interest in this case and decides to amend the arrest statute, so it allows an arrest instead of a summons whenever there has been a misdemeanor committed in the officer's presence and he feels like conducting a search. Can constitutional rights be altered in so crude a fashion? I wonder.

On personal knowledge

I read this article about the late D.C. lawyer William Hundley, including this quote regarding Monica Lewinsky:

“She’s no Marilyn Monroe, and I knew Marilyn Monroe.”

Of Brownlee and Giuliani

The New York Times has this article that talks of Rudolph Giuliani's efforts to intervene with W.D. Va. U.S. Attorney John Brownlee, on behalf of Giuliani's then-client Purdue Pharma, manufacturer of OxyContin:

"They figured Mr. Brownlee, a younger federal prosecutor, would look up to Mr. Giuliani, who became a legend as a United States attorney in New York.

Between June and October 2006, Mr. Giuliani met or spoke with the prosecutor on six occasions. During those conversations, Mr. Giuliani was cordial but pointed in arguing against what he felt were flaws in the case.

Mr. Brownlee would not change course, though, even when the Purdue legal team appealed, unsuccessfully, at the 11th hour to his superiors at the Justice Department in Washington.

In October 2006, Mr. Brownlee told Mr. Giuliani and Purdue that he expected to ask for a grand jury indictment by the end of the month. Plea discussions ensued and Mr. Brownlee ultimately agreed that the three executives would not have to do jail time."

The article also cites Tazewell County Commonwealth's Attorney Dennis Lee: "Dennis Lee, the Virginia state prosecutor for Tazewell County, an area hard hit by OxyContin abuse, said he was stunned several years ago to learn that Mr. Giuliani was working for Purdue. He had a favorable impression of Mr. Giuliani, he said, and a poor opinion of the company, which he said had played down and dissembled about its drug’s problem."

PointofLaw has this post, which explains part of the context of the criminal investigation, suggesting that the government holds all the cards in this area even more than usual.

Three books I'd like to check out

A U.Va. law grad named Kris B. Shepard has written a book called Rationing Justice: Poverty Lawyers and Poor People in the Deep South. The Daily Report has this review, which says in part: "Shepard uses the very different histories of the two largest programs in the region, the Atlanta Legal Aid Society and North Mississippi Rural Legal Services, to shed light on the diverse currents of the poverty law movement in the Deep South. The nascent Mississippi program was rural with significant African-American leadership and a strong civil rights focus, while the longstanding Atlanta program was mostly white, supported by the local legal establishment and focused on urban issues such as substandard public housing and predatory lending." The U.Va. Lawyer also has a review here.

Over the weekend, I saw the Booknotes segment on Senator Sam Ervin, Last of the Founding Fathers, by Karl E. Campbell of Appalachian State, which has this page about the book. I guess I've got a soft spot for white-haired self-made story-telling Constitutional law experts from the rural South, or at least some of them, at least the ones from places that are west of what is now Interstate 77.

In today's Bristol paper, in the Bucky column of all places, is retold the tale behind the book The Blind Side: Evolution of a Game, which among other things tells of Michael Oher, now a scholarship offensive lineman at Ole Miss. This sounds to me like a book that doesn't just belong in the sports pages.

On Doe v. Chao, Opinion No. VII

In Doe v. Chao, the Fourth Circuit in an opinion by Judge Wilkinson held that Judge Williams of the W.D. Va. in his latest opinion (Doe VI) strayed beyond the mandate from the Fourth Circuit following its latest opinion (Doe V) reversing the post-remand decision by the District Court (Doe IV) in this long-running Privacy Act case that was the subject of an earlier Supreme Court opinion (Doe III) that affirmed the first Fourth Circuit opinion (Doe II) that reversed the District Court's opinion (Doe I).

Judge Wilkinson observed: "Even litigation spawning multiple Roman numeral suffixes must come to an end."

In case you missed it

From Judiciary chair, Senator Leahy, in his statement of December 18:

"President Bush nominated Duncan Getchell to one of Virginia’s Fourth Circuit Vacancies over the objections of Senators Warner and Webb, one a Republican and one a Democrat. They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. As a result, this nomination that is opposed by Democratic and Republican home-state Senators is one that cannot move."

Of geography and such

Here, the NY Times reports on a NLRB decision that allows employers to limit the use of e-mail for unionization purposes.

Here those shills at the evil Verizon Wireless empire brag on providing "high-speed" wireless connectivity to Southwest Virginia, defined thus: "The network extends from Fairfield, W.Va., through Lexington, Roanoke, Salem, Blacksburg, Christiansburg, Radford and Pulaski. It also extends along Interstate 64 to Covington and includes portions of Alleghany, Bath, Bedford, Botetourt, Carroll, Craig, Floyd, Franklin, Giles, Montgomery, Patrick, Pulaski, Roanoke and Rockbridge counties." Which portions, the hilltops? What about the rest of us?

Over in Kentucky, the NY Times says here, one in ten has no teeth.

Here it says that Virginia and Tennessee are going to gang up on the Clinch and the Powell Rivers. The coalfields are defined by the Clinch River. You can look it up - e.g., that statute that says: "Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien." I think they quit mining coal east and south of the Clinch River not long after Chesterfield County adopted as its seal "a coal miner leaning on his pick under a pine tree with a flowing river at his feet."

The Highland County wind farm decision

The Roanoke paper reports here and the Richmond paper reports here on the conditions to the approval of the Highland County windfarm project. It sounds like the SCC went along with the intermediate position advanced by the Nature Conservancy - if my understanding is correct - that wind power can be done in ways that minimize the effect on bats and birds. I heard a great discussion about this case a few months ago at the VBA annual meeting.

The State Corporation Commission press release is here and the final order is here.

The press release notes: "Commissioner Judith Williams Jagdmann, while agreeing with approval of the project, dissented to that part of the SCC's order which provides for subsequent proceedings to increase the maximum annual payments required of Highland Wind for mitigation. Commissioner Jagdmann wrote that an 'applicant before this Commission, requesting a certificate of public convenience and necessity under Virginia statutes, deserves a more definitive ruling on the requirements that will be attached to such certificate.'"

Senator Webb's assignment for Christmas

The New York Times reports here that the U.S. Senate will stay open enough, with Virginia's own Senator Webb presiding a few (more) times, to keep President Bush from making recess appointments over the holidays.

WV's Justice Starcher will not run again

Here and here are articles on the decision by the outspoken Justice Starcher of the West Virginia Supreme Court, that he will not run again.

Justice Starcher wrote the funky opinion in the Harman Mining case, which is now the subject of a petition for rehearing, supposedly based in part on a ruling by the bankruptcy judge in Harman Mining's bankruptcy case in Virginia.

Virginia law decision from Third Circuit on unconscionability of arbitration clause in consumer contract

In Gay v. CreditInform, a panel of the U.S. Court of Appeals for the Third Circuit held that the arbitration clause in a contract with a consumer was not unconscionable, applying Virginia law because of a choice-of-law provision in the contract. The Court relied in large measure on the Virginia Supreme Court's analysis of unconscionability in Management Enterprises, Inc. v. Thorncroft Co., Inc., 243 Va. 469, 416 S.E.2d 229 (1992). Here is an article on the decision, from law.com.

I am unsurprised at the conclusion that waiver of the right to file a class action is not unconscionable under Virginia law, as there generally is no such thing as a class action under Virginia law.

That other Minor who started at U.Va. in the fall of '83

It says here that Halsey Minor bought Carter's Grove for $15.3 million.

On the future of circuit court clerks

The latest VLW is reporting that the Judicial Council of Virginia "dopted Washington County Circuit Judge C. Randall Lowe's suggestion that the court-related portions of the clerk's duties be handled by a judge-appointed court administrator, but that the clerk of court continue to perform the other aspects of the job."

I wonder what that means, evidently it means something less than what the Futures Commission proposed.

Why not try Confederate dollars next time?

In Bryant v. Washington Mutual Bank, Judge Moon of the W.D. Va. once again rejected the claims of the plaintiff based on the plaintiff's attempt to pay off a mortgage by means of a "Bill of Exchange."

Judge Moon notes, "As I cautioned Plaintiff at oral argument, people frequently end up in prison for pursuing these sorts of schemes," and cites this page, which explains that why such a gambit creates some jeopardy of criminal prosecution.

How many FBI agents must participate in 6:29 am raid on your house before you are in custody?

Evidently, the answer is something less than 23, which was the number of agents who raided the defendant's house in the case of U.S. v. Colonna. In that case, the Fourth Circuit in an opinion by Judge Gregory, joined by Chief Judge Williams and District Judge Wilson of the W.D. Va., reversed the conviction and ordered a new trial, concluding that the defendant's statements to the agents at his house should have been suppressed for violation of his Miranda rights.

Definitely worth reading

If you go to the webpage of Dallas litigator Barry C. Barnett, there is a link where you can download a chapter he wrote, called "Techniques for Expediting and Streamlining Litigation," for the ABA Litigation Section's treatise on "Business and Commercial Litigation in Federal Courts."

I think you ought to go there right now and download this chapter, and read it - if you don't already own the eight-volume treatise, which I don't, although I'm sure it is a bargain as it lists for over $1,000. They might have it in the "treatise room" in Abingdon, one of my old hang-outs.

Reading over this, I was reminded of the litigation of the statute of limitations issue in the Evergreen case. The Evergreen cases were filed against multiple defendants by the one plaintiff group, out in the provinces, like the W.D. Va., with theoretically longer statutes of limitation, then transferred to the District of Columbia, where Judge Hogan had already granted summary judgment against one of the larger coal companies. The uneducable youth that I was, I did my best to force the Court to rule on limitations, despite the reservations of older and wiser counsel. The threshold issue was which law applies, the transferor forum (Virginia) or the transferee forum (D.C.). The Court answered, in a fairly subtle opinion, that on this particular issue where the federal cause of action borrows the state limitations period, that the limitations period from the transferor state would apply. In re United Mine Workers of America Employee Ben. Plans Litigation, 854 F. Supp. 914 (D.D.C. 1994). This bummed me out, because the federal courts had held before and since that the federal law of the transferee forum is what generally applies. See, e.g., Hartline v. Sheet Metal Workers' Nat'l. Pension Fund, 201 F. Supp. 2d 1, 3-4 (D.D.C. 1999); In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987).

So, we retooled, and argued that under Virginia law, it was still the case that the shorter D.C. statute would apply, by virtue of Virginia's borrowing statute, Va. Code 8.01-247 (all of which was borrowed under federal law for the ERISA claims). By that time, the dust had settled on the MDL, and I went and argued at a hearing with just myself and the lawyer for the Funds, Julia Penny Clark of Bredhoff & Kaiser. And, Judge Hogan agreed. United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998). In a footnote, the Judge wrote: "This case is one of the many mine worker pension plan cases that were transferred to this Court from the Judicial Panel on Multi-District Litigation. The Court notes that this case presents an anomaly among these cases. Because of fortuitous factual circumstances and technicalities in the law, Defendants have been able to avoid liability in this case while many of their counterparts have not." So, as the invoker of the anomalies, fortuities, and technicalities, I was delighted.

In fact, that is my favorite footnote of all time. Have I told that story lately? Another part of it is here, and none of it can be told too many times.

Who are the lawyers of the Environmental Law Group?

The Environmental Law Group are among the counsel who filed the new suit against the expansion of Interstate 81, Shenandoah Valley Network v. Capka, Civil Action No. 3:07cv0066, now pending before Judge Moon in the Charlottesville division.

Four hundred years of Anglo-Saxon jurisprudence counts for something

"That Ms. Lowery has a boyfriend in Virginia is not grounds for denying her bail. Virginia is not a Third World country where extradition is not available."

Disappointed defense lawyer, quoted here, after his client was denied bail.

Just for a moment I was back at school . . .

Here is one of the YouTube versions of Dan Fogelberg's Same Old Lang Syne, one of those songs everybody knew when I went to college, even those who didn't like it. In those days, I'm not sure we knew what "that old familiar pain" was.

Dan Fogelberg died yesterday, evidently gone the way of the 140+ others on this list.

Judge Johnston in Beckley

Here the Beckley paper has a profile of S.D. W.Va. Judge, Thomas Johnston, of the youngest in the nation at age 38.

The article says this, among other things:

"The young judge said that he loves nothing better than sinking his teeth into an intriguing and complex legal issue and attempting to resolve a question not easily answered. To that end, he was asked in September to sit and hear oral arguments at a federal appeals court in Virginia.

'Basically, none of them are really easy cases by the time they get there. It’s fascinating. We have some of the best legal minds and legislative minds in Congress who do their best to write the best possible laws to accomplish what they’re supposed to accomplish. In spite of all that effort, human beings keep coming up with ways to come up with situations that don’t exactly fit the law. The law doesn’t exactly apply or wasn’t contemplated by the law. That’s the type of case that I get into that’s really interesting to sort out. We have these facts, and we have this law — how do they apply? That’s an interesting process.'

A self-described 'disciple of Christ,' Johnston lets his faith guide him in as many facets of his life and work as possible. Compassion, kindness and justice — what better traits to emulate for one who asserts that he follows in the footsteps, at work and at home, of the Man from Nazareth?

'I suppose being a follower of Christ is what informs the way I live life, both day to day and long-term. I want to do things to His glory. I try to treat people with kindness and compassion, but this job also involves justice as well. I try to do the best I can to reach just results in the cases I work on and to treat people with kindness.'"

Fourth Circuit upholds W.D. Va. conviction for making threats to U.Va.

In U.S. v. Bly, the Fourth Circuit in a published opinion by Judge King, joined by District Judge Conrad, with Judge Motz concurring separately, affirmed the conviction of the defendant under 18 U.S.C. 876(b), for threatening the University of Virginia, rejecting the defendant's arguments that his threats were protected speech, and that the University was not a "person" protected by the statute.

Judge King noted: "Threats — including threats of extortion — are not constitutionally protected simply because they are verbalized or written." On the issue of "personhood," the Court rejected the analogies to cases involving civil liability, such as 42 U.S.C. 1983, under which the state is not a person.

Judge Motz reached the same conclusion by another route, citing pre-1947 statutory construction cases from the Supreme Court.

Jennifer Bockhorst argued this interesting cases for the government.

MDV in executive employment contract case

This afternoon, a jury in the Abingdon division of the W.D. Va. awarded a verdict of $4,000,000 on the implied contract claim in the case of United v. Keenan, Civil Action No. 1:06cv0071, related to a $10 million bonus paid to the defendant.

Interestingly, Magistrate Judge Sargent tried the case, with Big Law lawyers on both sides, plus local counsel.

Wahoo's with Imus

The New York Times has this profile of Tony Powell, said to be an old RCS major at the University, and now part of the Imus program.

Dog books

For my birthday, a couple of months ago, my wife or somebody got me the collection of Jack Kestner columns. My reaction to it was not what she expected, as she said: "I didn't know it was going to make you cry." It was the dog stories, I said, and the dog pictures - Buck, Leroy, Little Girl, et al., dogs I'd known in a sense for years.

One night this week, I enjoyed Jon Katz's Dog Days: Dispatches from Bedlam Farm, which begins with the disclaimer, "No dogs die in this book." I wonder whether Southwest Virginia's own Donald McCaig, author of Eminent Dogs, Dangerous Men: Searching through Scotland for a Border Collie among other works, would be considered a Border Collie Snob, by Katz's reckoning.

To the point, I have since learned that the dog died in one of Katz's earlier books, about which one Amazon reviewer wrote: "Maybe Jon Katz and Michael Vick should get together."

A week from today is December 20, the anniversary of a bad day in my book.

Welcome

My rant about the Supreme Court's font choices made the bigtime on Blawg Review # 138, which says in part:

"As if there weren't enough meaningful, important rules to learn about how to practice, Steve Minor informs us that the Supreme Court of Virginia uses only Courier in its own documents, and plans to require that all filings be made in that font or Arial or Verdana, while other courts forbid using such sans-serif fonts."

Also, Brian Peterson (from the other side of the state line), has this perspective.

Third years win again, in federal guilty plea case

In U.S. v. Mastrapa, the Fourth Circuit in an opinion by Judge Niemyer, joined by Judges Duncan and Senior Judge Ellis, reversed the judgment entered by Judge Conrad of the W.D. Va. on the guilty plea of the defendant, concluding that the requirements of the guilty plea rule were not satisfied as the defendant (who speaks only Spanish) never allocuted to and the government never proved facts that would satisfy the criminal intent requirement for the offense with which he was charged.

Concerned with the Rule 11 issue, the Court had earlier appointed the University of Virginia School of Law Appellate Litigation Clinic to file a brief on Mastrapa’s behalf.

Alapa admitted only that he carried grocery bags, not that he knew there was methampetamine in them:

"He thought that by carrying the bag that had 'a lot of food' inside of it, even though he did not know it had drugs, he had unwittingly participated in a conspiracy for which the American system would imprison him despite his lack of knowledge."

More wolves and Indians, less literature and history

I've been reading Boone: A Biography.

It's good not great - great story, so much of it about places right here or hereabouts, but told with too many literary, social, psychological, historical allusions, similes, metaphors, and references.

So, probably it reads about like one of my briefs. At the hearing yesterday, the judge said this brief looks much shorter than what I usually get from you, to which I replied, Judge, I've been out of town a lot lately.

On matters of excuse and recusal

The big trial scheduled for next week got pushed back because one of the lawyers said he was ill. If he said he was ill, I'm taking his word for it.

In the big hearing in another case yesterday, we learned when we got there who the judge would be, and - it was the same judge who had the same case in the earlier filed version, before the non-suit. Is that surprising?

I had done some research on the point:

"Some courts, state and federal, have explicit rules regarding the reassignment of refiled cases to the judge who had the first case between the same parties regarding the same subject matter. See, e.g., Local Rule 40.3, U.S. District Court for the Northern District of Illinois (“When a case is dismissed with prejudice or without, and a second case is filed involving the same parties and relating to the same subject matter, the second case shall be assigned to the judge to whom the first case was assigned.”); Rule 3.2, Georgia Uniform Rules of the Superior Court (“When practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge. Whenever such action is refiled, . . . such actions shall be assigned to the judge to whom the original action was or is assigned.”). Local rules of this kind “exist for the purpose of governing the flow of work in the district court as sensibly and efficiently as possible.” U.S. v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967). Even without local rules, courts have recognized their inherent authority to limit the ability of a litigant to draw a different judge just by taking a voluntary dismissal. See, e.g., Vaqueria Tres Monjitas, Inc. v. Rivera Cubano, 341 F. Supp.2d 69, 72 (D.P.R. 2004) (citing cases in support of the Court’s power “to act to preserve the integrity and control of its docket”) (cited with approval in Wilson v. Com., 46 Va. App. 408, 442, 617 S.E.2d 431, 447 (2005) (Kelsey, J., concurring))."

And, I got a ruling today from the Southern District of West Virginia. Rooting around on their website, I noticed that the judges there have posted a recusal list. How odd, and yet how reasonable.

On immunities, by John Williams

Here from PLI Toolbox is an article on immunities in section 1983, by Connecticut lawyer John Williams, who of course is not the fellow who wrote the theme to Superman and the NBC Nightly News.

"Serif? Don't like it," says Supreme Court

Not long after I wrote about the absurdity of the Virginia Supreme Court's continued use of the Courier font in its own documents, I get the word by way of the VLW Blog that the Court now proposes to require lawyers to use Courier (or Arial or Verdana) in all filings with the Court.

Wow, that's cheesy - especially the Arial and Verdana. In many courts, such as this one, the use of sans serif fonts is prohibited. See generally Rule 32, FRAP. This report from the Seventh Circuit website says: "Studies have shown that long passages of serif type are easier to read and comprehend than long passages of sans-serif type."

On proving discriminatory motive

ACS has this guest post, about the case before the Supreme Court called Sprint/United Management Co. v. Mendelsohn.

The issue is about whether in an employment discrimination case the plaintiff can attempt to prove discriminatory intent by the use of "'other supervisor' evidence — evidence that an employer's supervisors, other than the one who supervised the plaintiff, may also have engaged in acts of discrimination; and 'culture evidence' — evidence of a pattern and practice of discrimination."

Having litigated illegal motive a few times, part of me says - balderdash. Company-wide "culture" is as variable as anything else under the sun - some have it, some don't. A blanket rule on "culture" evidence as regards the intentional discrimination claims of individuals seems to me wrong, whichever way it goes, and the same goes for "other supervisor" evidence, except that I can't recall a case where the motives of some remote supervisor would have convinced me of anything.

The cert petition suggests there is dictum from the Fourth Circuit that comes down against the use of "me too" evidence, citing Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180 (4th Cir. 2004). The brief in opposition questioned this reference.

Reading below the Mendoza line

I have read only one of the books on the NY Times' Ten Best for 2007 list - Out Stealing Horses, which was very entertaining, but does it count as a 2007 book? I thought it was just published in English in 2007.

On the late Henry Hyde

Is it just me, or does the mention of the name of Henry Hyde, who died yesterday, make you think of this speech, which might be viewed as profound or ironic depending on your point of view, in which he said among other things:

"The rule of law is one of the great achievements of our civilization. For the alternative to the rule of law is the rule of raw power. We here today, are the heirs of three thousand years of history in which humanity slowly, and at great cost, evolved a form of politics in which law, not brute force, is the arbiter of our public destinies.

We are the heirs of the Ten Commandments and the Mosaic law: a moral code for a free people who, having been liberated from cruel bondage, saw in law a means to avoid falling back into the habits of slaves.

We are the heirs of Roman law: the first legal system by which peoples of different cultures, languages, races, and religions came to live together in a form of political community.

We are the heirs of Magna Carta, by which the freemen of England began to break the arbitrary and unchecked power of royal absolutism.

We are the heirs of a long tradition of parliamentary development, in which the rule of law gradually came to replace the royal prerogative as the means for governing a society of free men and women.

We are the heirs of 1776, and of an epic moment in human affairs when the Founders of this Republic pledged their lives, fortunes and sacred honor - sacred honor - to the defense of the rule of law.

We are the heirs of a hard-fought civil war, which vindicated the rule of law over the appetites of some for owning others.

We are the heirs of the 20th century's great struggles against totalitarianism, in which the rule of law was defended at immense cost against the worst tyrannies in human history. The "rule of law" is no pious phrase from a civics textbook. The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties. The rule of law is what allows us to live our freedom in ways that honor the freedom of others while strengthening the common good. The rule of law is like a three-legged stool: one leg is an honest judge, the second leg is an ethical bar, and the third is an enforceable oath. All three are indispensable to avoid political collapse.

In 1838, Abraham Lincoln celebrated the rule of law before the Young Men's Lyceum of Springfield, Illinois, and linked it to the perpetuation of American liberties and American political institutions:

'Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution never to violate in the least particular the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws let every American pledge his life, his property, and his sacred honor; let every man remember that to violate the law is to trample on the blood of his father, and to tear the character of his own and his children's liberty. Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap - let it be taught in schools, in seminaries, and in colleges - let it be written in primers, spelling books, and almanacs - let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.'

My colleagues we have been sent here to strengthen and defend the rule of law - not to weaken it, not to attenuate it, not to disfigure it while seeking an extra-legal and extra-constitutional solution to the threat posed to the Republic by a presidential perjurer.

This is not a question of perfection; it is a question of foundations.

This is not a matter of setting the bar too high; it is a matter of securing the basic structure of our freedom, which is the rule of law.

No man or woman - no matter how highly placed, no matter how effective a communicator, no matter how gifted a manipulator of opinion polls or winner of votes - can be above the law in a democracy.

That is not a counsel of perfection; that is a rock-bottom, irreducible principle of our public life."

The quotation was from Abraham Lincoln, "Address to Young Men's Lyceum of Springfield, Illinois, January 27, 1838," in Abraham Lincoln: Speeches and Writings 1832-1858 (New York: The Library of America, 1989), p. 32.

Good books read (or re-read) lately

The Kite Runner, by Khaled Hosseini. The talk about kites in pre-Communist, pre-Taliban Afghanistan makes me think of the descriptions of pigeon-racing in Belgium before World War I, in After the War by Richard Marius, one of my favorite books.

Welcome to the World, Baby Girl!: A Novel by Fannie Flagg. My wife picked this up for me from the library, I certainly would not have predicted the mother's secret.

1776 by David McCullough. This book made me think of the Jamestown book I read not too long ago - the survival of the American experiment was a close-run thing, even before it got started.

It Doesn't Take a Hero : The Autobiography of General H. Norman Schwarzkopf by Norman Schwartzkopf. This book on re-reading makes me wonder all over again, who was surprised by anything that Dick Cheney has done since 2001? He was doing it back then.

Playing for Pizza, by John Grisham. This book is absolutely delightful, and the very best part is the description of Rick's first meal in Parma. This book makes me think that Grisham has a few quarterback flights of fancy, going back to his high school days - supposedly he was a quarterback back then, like the local lawyer in A Time to Kill. Having been a tourist in Italy with just about as much sophistication or lack thereof as the hero of the book, I found it entertaining as a travel and food book - the football part is the least of it.

Frank Kilgore wants to take away your fried chicken

Here is a piece of writing by St. Paul lawyer Frank Kilgore, on educating Appalachia out of poverty and disease.

It says in part:

"[O]ur region’s health care statistics are still shameful, and the images of the huge crowds at annual Remote Area Medical (RAM) health care events in the Virginia communities of Wise and Grundy are not acceptable in the world’s richest nation in one of the nation’s richest states. When under served citizens will stand in line for hours and sleep in cars overnight just to have a throbbing tooth pulled or to obtain life saving medicines, something very bad has gone wrong."

It also says:

"Holding parents and caretakers more accountable for harming children with second hand smoke, drug use and alcohol abuse would be a good start as well. The throngs of adults who attend coalfield higher education institutions should follow the examples of the Appalachian School of Law and the University of Appalachia College of Pharmacy. These graduate schools located in Buchanan County, Virginia are national leaders in requiring community services of their students to promote healthier living, leadership and guidance to the young generations who will soon face the option of staying in their coalfield communities to seek higher education and making a difference, or leaving the region and continuing the “brain drain” that ultimately disables progress."

I heard an interesting discussion while driving back from Nashville last night, either Fresh Air or some similar left-wing Public Radio program, and the gist was that the European Union is more intrusive in matters of public health and safety - because there the government winds up footing the bill for the health consequences.

Washington Post approves Rosenstein for Fourth Circuit

The Washington Post editorializes here in support of the nomination of Rod S. Rosenstein to the United States Court of Appeals for the Fourth Circuit, rejecting the arguments put forth by Maryland's Democrat senators.

Judge Millette gets Court of Appeals vacancy

I had heard that Governor Kaine was going to appoint Circuit Court Judge Leroy Millette to the Virginia Court of Appeals, and yesterday he did.

The press release from the Governor is here.

The Baltimore Sun ran this profile on Judge Millette at the time of the D.C. sniper trial in Prince William County, over which he presided. It says among other things that he is a William & Mary law graduate, evidently from the same class of '74 as Judge Glen Conrad of the W.D. Va.

West Virginia Supreme Court overturns verdict against A.T. Massey in Harman Mining case

As reported here, the West Virginia Supreme Court overturned the $50 million plus verdict against A.T. Massey in the case of Caperton v. A.T. Massey, in a split decision. The Court held that the plaintiffs' claims were subject to a constractual forum-selection clause, specifying Virginia, not West Virginia, and that they were also barred by res judicata, based on Virginia law as applied to the now-final prior litigation in Virginia.

Check it out.

In his dissent, Justice Starcher begins: "The majority’s opinion is morally and legally wrong," and goes on to talk about Don Blankenship and his attempts to influence judicial elections in West Virginia. There's never been a dissenting opinion like it issued by the Virginia Supreme Court, surely.

As I've written before, in earlier times, several of the earliest federal judges of the Western District of Virginia came from what is now West Virginia, and but for the location of some railroad lines, some say Southwest Virginia would be in West Virginia - yet I read Justice Starcher's dissenting opinion and West Virginia seems very far away and different from here.

Next week in the Fourth Circuit

Here's the online argument calendar for next week's session of the Fourth Circuit.

One case is about the constitutionality of the exception to Virginia's FOIA for inmates.

One case is about whether a letter of reprimand is an adverse employment action for purposes of Title VII.

One case is a constitutional challenge to North Carolina's campaign finance laws.

One case is about standing in connection with a constitutional challenge to zoning limits on the location of methadone clinics.

Dogs and the law

On the same day the Roanoke paper ran this profile of Jill Deegan, a Botetourt County assistant Commonwealth's attorney who specializes in sophisticated handling of animal abuse cases, the story got out that the United States is looking to get about $1 million from Michael Vick for the cost of taking care of his old dogs.

Watch what you ask for

Here is the Virginia Supreme Court order from the case of the temporary injunction against the sale of the paintings, from this post of the Art Law Blog.

So, there you have it. I complain about not seeing the order, but no it was online after all. And, the order says - nothing in particular about the basis for the Court's decision.

You'd think that if the College is nearly broke, it is the side more likely to be irreparably harmed by a delay of six months.

Reason No. 1001 why all orders and opinions should be published, on the Web, and in the public eye

The Lynchburg paper reports here, inscrutably, that the Virginia Supreme Court has reduced the bond necessary for a temporary injunction against the sale of those paintings in the Randolph College/Maier Museum case.

What? You can't tell from the news story whether this is an outrage or not. You can't tell from the website, because the Supreme Court won't publish orders like this, for reasons that make just about as much sense as their continued use of the courier font for their opinions - that is, no reason at all, that's just the way it has been done, just another random relic of history that's long since lost its purpose. Heck, even the State Department scrapped the courier font in 2004, as described here.

Now, font preferences are one thing, but the relative inaccessibility of the Court's orders is an issue of open government, and the current way of doing things is wrong, in my opinion, as I have said here many times.

Rosenstein nominated to Fourth Circuit

Also on November 15, President Bush nominated Rod J. Rosenstein from Maryland to succeed the late Judge Murnaghan on the United States Court of Appeals for the Fourth Circuit.

As previously noted, Maryland's senators are not on board with this nomination.

Here is an editorial from the Baltimore Sun, and here are stories from the Washington Post, the Baltimore Sun, and the Baltimore Examiner.

With the nomination of Mr. Rosenstein, there are now four nominations to the Fourth Circuit waiting Senate action, the others being Judge Robert Conrad of North Carolina, Steve Mathews of South Carolina, and Duncan Getchell of Richmond. There is one more vacancy to which no one has been nominated, to replace former Judge Luttig.

Two E.D. Va. judgeship nominations

According to this press release, President Bush has nominated Mark S. Davis to succeed Judge Ellis and David J. Novak to succeed Judge Payne.

Davis is a circuit court judge in Portsmouth, Novak is an assistant U.S. attorney.

Here are reports from the Daily Press, the Virginian-Pilot, and the Richmond Times-Dispatch, and here's a snippet from the AP.

Evidently, Senators Webb and Warner are both on board for these choices.

Judge Davis previously worked with the law firms of Carr and Porter in Portsmouth and McGuire Woods in Norfolk, or so suggests Westlaw. Mr. Novak was recognized last year along with others from the Moussaoui trial team, with the Attorney General’s Award for Excellence in Furthering the Interests of U.S. National Security.

On Southwest Virginia courthouses

VLW Blog links here to this story in the Bristol paper that says Smyth County has agreed to spend $24 million to upgrade the courthouse at Marion.

I've been in the courthouse up there many times. I'm not sure that it is any worse or less secure than the courthouses in Lee County and Scott County, or Dickenson County and Buchanan County for that matter, but maybe it is. I don't know the set-up of the juvenile courts in those places, where the security risks are very real. The Tazewell County courthouse was redone and seems very nice. The Washington County courthouse is confusing but it has far better security than the others. The Wise County courthouse is also confusing but at least the main courtroom is pretty far from the street.

Michael Large has cool virtual tours of some of these buildings on his website.

Probably the most interesting looking was the federal courthouse they tore down in Abingdon.

Courthouse security is better everywhere now than it was. Years ago, while I was still in law school, I went to Russell County for the first time to see part of a murder trial, where the defendant was represented by John Lowe. During one of the breaks, I stood out on the front porch for a while looking out over the town when I realized the fellow standing next to me, having a cigarette and sharing the view, was the defendant.

The only "modern" building for miles around is here in Bristol. (The buildings in Christiansburg and Bristol and maybe Jonesville are, as I recalls, the only Southwest Virginia courthouses that didn't qualify for the book, Virginia's Historic Courthouses.) The story is often told that while the design of the Bristol complex was lauded as escape-proof, with underground connections between the jail and the court, supposedly the defendant at one of the early trials in the new building ran out of the courtroom and out the front door.

One retired local lawyer told a similar tale recently, or maybe it was the very same case, where his court-appointed client fled the premises after the jury had retired, prompting then-Judge Davis to comment that the defendant was apparently dissatisfied with his lawyer's summation.

On Steven Rose

The Johnson City paper has this obituary, which reads in part:

"Steven C. Rose was born in Kingsport, Tennessee, on January 18, 1952. Husband, father, son and lawyer, he passed away unexpectedly of a sudden heart attack at his home Tuesday morning, November 13, 2007. He was 55-years old.

Steve was the son of Cecil and Virginia Rose, and he was a life long resident of Kingsport. He graduated from Dobyns-Bennett High School in 1970, where he played on the varsity football team under coach Tom Pugh.

He attended the University of Tennessee at Knoxville where he graduated with honors with a degree in Business Administration. He attended the University of Tennessee Law School and graduated in 1977 and while attending was member of the school’s esteemed “Tennessee Law Review.”

He was admitted to the Tennessee Bar in 1977 and began practicing law as an associate at the law firm of Hunter, Smith & Davis. In 1983, he left Hunter, Smith & Davis and joined Mason Dixon Tank Lines, Inc. as Executive Vice-President. In 1984, he returned to the practice of law with M. Lacy West, deceased, under the firm name West & Rose. He practiced law with Lacy for 22 years and was joined in the firm by Lacy’s wife, Julia West, and recently by his son, Curt Rose. He loved the practice of law and was one of the fortunate few who got to make a living doing what he loved.

He served on numerous Boards of Directors including past President of Mountain Region Speech and Hearing, past President of Friends of Allandale and past President of Kingsport Swim Association. He also served as past President of the Kingsport Jaycees, past President of Rotary of Kingsport and past President of the Kingsport Bar Association. He recently had been appointed to and served proudly on the Tennessee State Judiciary Selection Committee.

Steve’s pride and joy was his family; he lived every day to the fullest and enriched the lives of those he had the pleasure to meet. He will be sorely missed by his family, friends and colleagues."

Why isn't the Ninth District part of the State of West Virginia?

This page purports to have the answer.

It says in part:

"Had the official split occurred 90 years earlier, the boundary may have been the crest of the Blue Ridge. Had the Civil War occurred in 1850, then West Virginia may have included what is now the Ninth Congressional District. Once the Virginia and Tennessee Railroad was built, connecting Southwest Virginia with Tidewater ports, subsistence agriculture was replaced with a cash economy based on tobacco. As part of the cultural change, slavery became more common in the region - and of course the counties went into debt to help finance the railroad. The boundary commission that recommended what counties should be included in the new state purposefully excluded those counties with a heavy debt load."

On the Civil War origins of the Virginia church property statute

This interesting article from the Washington Times about the pending litigation in Northern Virginia over the division of church property on account of splits within the Episcopal Church traces the origins of the statute at issue, Va. Code 57-9, to the day when congregations split over the issue of secession, prior to the Civil War.

The article begins:

"The largest property dispute in the history of the Episcopal Church, brought on by divisions over a homosexual bishop, is likely to turn on a Civil War-era Virginia law passed to govern churches splitting during disputes over slavery and secession," and notes that "many of the documents filed by the breakaway churches talk of 1860s splits among Baptists and Presbyterians over slavery and secession, including an 1867 article in the New York Times."

Worth reading

Over the weekend, I read Dominion of Memories: Jefferson, Madison, and the Decline of Virginia, an excellent book. The subject matter is the economic and political decline of Virginia from 1820 to 1860. Previously, I linked to a review of this book.

One of the many themes is that you can find a quote from Jefferson (or Madison) to support about any proposition, at least as regards the balance between state and federal power - for better and for worse.

Another theme is that at least to some degree, Virginia's elite had choices, and what they chose was to cling to their own wealth and power at the expense of democracy and progress, for reasons both rational and irrational, with results that were both predicted and predictable.

I wonder how this book compares with, for example, The Decline and Fall of the British Aristocracy.

The author Susan Dunn is cited in this article, in the Washington Post.

There are No Fourth Circuit Opinions Today

That's what the e-mail says.

A few election notes

Among the races I noticed:

Ex-mayor of Roanoke Ralph Smith got into the Senate.
VBA Board member Robert Hurt got into the Senate.
Bill Carrico and Anne B. Crockett-Stark stayed in the House.
Poindexter beat Ferguson, in that wacky race.
Neo beat Tolliver for Commonwealth's Attorney, as Buchanan County entered the Matrix.
The incumbent Short beat the challenger Short for Commonwealth's Attorney in Dickenson County.
In Lee County, everyone who testified for the plaintiffs in the Chadwell and Laster (not Lester) trial lost - D.J. Barker, Pete Sumpter, Robin Robbins - but Bill Willis and Ty Harber got back in, and John Marion was re-elected, so three-fifths of the 2000 school board will be reunited in 2008.
The clerks of court in Russell County and Montgomery County got voted out.
Sheriff Broadwater got voted out in Scott County.
Here in Washington County, Mark Graham lost to Tricia Phipps by a wide margin in the race for clerk of court.
In Wise County, only one D. Mullins was elected, and Rocky Cantrell did not get in for School Board.

The most provocative result was for Dickenson County School Board - William A. "Bill" Patton 496, Write-in 496.

Worth 1,000 words

I told Jina Sauls that this picture would be popular.



Here are Stephen Armstrong, Whitney Caudill, The Honorable Robert J. Humphreys, myself, and Lindsay Brubaker. The story is here.

Bloggables

Here's a story from the Norfolk paper on the plethysmograph case, out of Tazewell. It quotes Steve Emmert, who wonders, how will Judge Vanover forget the bad evidence on remand? The case is Billups v. Com., an opinion by Senior Justice Russell, reversing the Court of Appeals. Justice Kinser wrote a separate concurring opinion, joined by Justice Agee. My post about the panel decision of the Court of Appeals is here.

Here's a story from the Lynchburg paper on the DUI case, which says you can't be under the influence of drugs if they weren't "self-administered." The case is Jackson v. Com., an opinion by Chief Justice Hassell, reversing the Court of Appeals..

Mr. Gibson at the Charlottesville paper had this piece on why using bad drivers as a fund-raising tool is bad policy. Here's the full research report. The Media General story was published in the Bristol paper next to an article about how Sheriff Newman in Washington County uses bad drivers as a fund-raising tool - but the paper endorsed him anyway.

This story from the Roanoke paper says a writ panel declined the petition for appeal of MeadWestvaco in a $7 million suit against Buena Vista.

Here's a great profile of a former mayor and state court judge from Alexandria, who decided after he got married at age 76 that he should have tried it sooner.

Here's an opinion from the D.S.C. that says a blogger is not liable for calling someone a "yes man", but the yes man's lawyer is liable to the blogger for filing a bogus lis pendens on his real property.

This article from the Fredericksburg paper says a panel of the court of appeals is going to have a session there, while this article says the court of appeals affirmed the conviction in a pit bull case. The pit bull case is Large v. Com.

Here's a funky story on the mud in the Wise County clerk's race.

Here's somebody's alternative take on the Judge Shull case.

E.D. Va. order of acquittal in money laundering case reversed

In U.S. v. Hoffler-Riddick, the Fourth Circuit in an unpublished per curiam opinion for the panel of Judges Traxler and Shedd and District Judge Moon of the W.D. Va. reversed the District Court's order directing an acquittal on the money laundering charges against a former local government employee from Norfolk, whose financial advisor boyfriend set up a transaction to help a drug dealer with no credit history.

Worth reading, every word

The most recent edition of the VBA Journal contains the remarks of Supreme Court Justice Robert H. Jackson, delivered to the Summer Meeting of The Virginia Bar Association in 1947, about the Nuremberg trials, in which he was a prosecutor for the United States. He concluded: "We have given the world an example of a trial and hearing instead of executing people in cold blood."

Other speeches made by Robert H. Jackson can be found here.

The Virginia Holocaust Museum in Richmond has been working on a Nuremberg trials courtroom exhibit.

On the passing of a Sunday School teacher

H.C. Kiser, Jr., died this week. A short obituary is here, and it says in part: "He touched many lives with his testimony of his World War II POW experiences and his desire for everyone to know the Lord as revealed in his favorite Scripture, "Jesus says, I will never leave you or forsake you" (Hebrews 13:5)."

I've mentioned before the book about him.

Here is a short excerpt from the book, retelling the story I heard parts of at different times over thirty years ago. The date was October 12, 1944, American airman H.C. Kiser was 19, his bomber was on fire in the sky over Italy, and he was confronting the first crisis of his life:

"H.C. could look out on either wing and see smoke and flames coming out of the engines. He knew, perhaps, it would just be a matter of time until the plane exploded. H.C. and Doug Johnson, both waist gunners, were to bail out of the same escape hatch. Their oxygen was gone, and they were gasping for breath. . . .

H.C. had on fleece-lined gloves, and he crawled over to a metal door handle marked 'Pull in case of emergency.' He pulled his right glove off and grabbed the handle. His hand stuck to the door latch. Gasping for breath, he couldn't release his hand. The other waist gunner, Doug Johnson, came over and put his hand over H.C.'s. They both pulled, and the big door blew off into space. A 50-below-zero wind came rushing up and hit them in the face. They regained their senses from the blast of cold air and began to argue who would jump first - neither of them had ever jumped.

During the course of the argument, Doug pointed at H.C.'s chest parachute. His parachute had popped open when the plane was hit. The ripcord that he was to pull for a successful shoot opening was gone. The contents of the parachute had popped out into the plane and were scattered all up and down the waist of the plane. . . .

Doug said he wouldn't jump without helping H.C., and there were no extra parachutes on the plane. H.C. told him not to risk his life. After much hesitation, Doug jumped. H.C. watched him as he cleared the plane and reached for the rip cord; he pulled it and the parachute successfully opened.

[H.C.] crawled on his hands and knees down through the fuselage of the plane, gathered up all of the tangled shroud lines and the canopy of the parachute, and crawled back to the escape hatch. H.C. had gathered the parachute into a large bundle. In fact, the bundle was larger than the opening out of which he was to bail. H.C. kept trying to compress it small enough to get out of the door.

Finally he did this and began to pray: 'Lord, I don't know what to do, but I just pray that you will help me make the right decision: should I bail out or should I right this burning bomber down?' H.C. said, 'I had seen many planes go down and they usually burst into flames. It seemed like the Lord just said, 'H.C., I am a God of miracles; and if you will just leap out into space with a torn parachute, I will show you that I am a God of miracles.' Some time back in his Sunday School class, as a teenager, H.C. had a teacher who said when the book of Acts was finished that God no longer had to do these mighty miracles as He did when he was here among men. H.C. said, 'I knew that if I was going to live, it would take a miracle from a might God.'

He leaped out of the plane. As he saw the plane's rudder and tail section go by, he unfolded his arms and the parachute went up in a tangled mess. H.C. began to pray that God would open the parachute. He was falling faster and faster, and the parachute hadn't opened. H.C. began to make a lot of promises to the Lord. H.C. said, '. . . I looked at my little Bulova wristwatch and I said, 'Lord, perhaps in the next few minutes I will face death because this parachute isn't opening, and I just want to praise you this morning for the fact that you have taken all fear out of death; I am not afraid to die. Lord, I am nineteen years old. If you would see to open this parachute, I will witness for you every opportunity. Lord, I am so young to die, and I am thousands of miles away from my Godly parents, grandparents, and my pastor. Lord, it is just you and I here now, and I pray to you. I haven't been a Christian long, Lord, but I pray that you will let me live.' Still nothing happened. I told the Lord that maybe this problem was just too big for him, that even He couldn't open a tangled mess. When I told Him He couldn't, He showed me He could. The parachute opened with a terrific bang. I bit my tongue, my boots almost flew off, and I began to praise the Lord Jesus because this was truly a miracle.'"

Called to Be His Servant, H.C. Kiser, Jr.: A Biography, by Beverly Harding-Mullins, pp. 27-29, ISBN No. 0966451104.

Ex-judge Shull

The Supreme Court ordered today, at the conclusion of this opinion, that "that James Michael Shull be removed immediately from the office of Judge of the Thirtieth Judicial District, pursuant to Article VI, § 10, of the Constitution of Virginia."

The opinion says: "Initially, we note that the record before us contains many letters from attorneys, court personnel, and local citizens, who have written in support of Judge Shull’s professional reputation and service to his community."

One of those letters was from me, and it said this:

"To Whom It May Concern:

Re: Judge Michael Shull

I have practiced law in Southwest Virginia since the Fall of 1990 and known Mickey Shull for some years. Mr. Shull is an engaging individual with a lively mind. He is smart and he is quick, and he is very empathetic. He has done a lot to help friends of mine from Scott County. He made an excellent living as a lawyer working out of a storefront office, with cases in every courtroom. When I learned that he was a candidate for the judgeship he now holds, I wrote to Senator Wampler to tell him that I supported Mr. Shull, and expressed the view that these qualities - his sharp intellect, desire to help people - would allow him to become an excellent juvenile judge.

Most of the time I have spent with Judge Shull (since he became a judge) has been talking about public affairs with him and other lawyers over lunch or at the courthouse. I have not appeared before him, but I have done my best to follow his career. What I have heard is that he does the Court's work with a high level of energy and that he does a good job discerning and applying the law.

I have no knowledge of the particulars of the complaint against Judge Shull that has been reported in the newspapers. It is my firm belief that Judge Shull is unbiased in his work and perfectly suited to dispense equal justice under the law, to persons of all kinds. His personality and manner of expression might not always make a good impression - sometimes he talks too loud and says too much. In spite of these quirks, I think he is a good man and so far as I can tell, a good judge also."

That's all I have to say about that.

New bankruptcy judge in Norfolk

The Norfolk paper says here that Frank J. Santoro is the new bankruptcy judge of the E.D. Va. at Norfolk.

Shutdown plus 60 days wages equals no WARN Act violation

In Long v. Dunlop Sports Group, the Fourth Circuit in an opinion by Judge Motz, joined by Judges King and District Judge Robert Conrad, held that the employer did not violated the WARN when it shutdown without prior notice but continued to pay wages to the plaintiffs for an additional sixty days. The Court concluded "that the employer did not violate the WARN Act because no employee suffered an employment loss as a result of the plant shutdown until 60 days after the employer provided notice of it." The Court also observed: "When an employer commits to continue payment of wages and benefits to its employees, the employment relationship has not ended."

Suspicious bliss

In U.S. v. Moore, the facts indicate that the arresting officer thought the fellow he stopped outside of the FloydFest was suspiciously "“way too nice."

Judge Urbanski concluded: "Moore’s continued cooperation, talkative demeanor
and friendly attitude does not suggest that crime was afoot." He also concluded that the mere fact that the defendant had just come from FloydFest "is not enough to justify the prolonged stop, detention, and interrogation."

Funny sort of job description

Being argued this week before the Supreme Court is the case of Hilton v. Martin, where one of the issues is this:

The trial court erred in sustaining the Defendants' Motion to Dismiss and Plea in Bar to the Plaintiff's Second Amended Complaint and dismissing it in its entirety on the basis that the claims are barred by the exclusive remedy provisions of the Virginia Workers' Compensation Act because Martin's actions of deliberately striking his fellow employee, Ms. Rhoton, with charged cardiac defibrillator paddles were personal in nature and did not arise out of their employment with Highlands Ambulance Services, Inc.

Two other interesting W.D. Va. judges

I wrote the Wikipedia pages on Judges Dobie and Barksdale.

And, they are as interesting as the rest.

Judge Dobie got the District Court position because FDR owed him a favor, plus he wanted to put up someone so well-qualified that Virginia's Senators Glass and Byrd wouldn't have the nerve to oppose him. Dobie gave a speech at the 1940 convocation at William & Mary, about which the Flat Hat records: "Typical of Judge Dobie's address was the manner in which he brought it to a close. He said that as Lady Godiva had said as she was nearing the end of her famous bareback ride, 'I am nearing my close,' that he too was ending his talk." When Dobie went on the Fourth Circuit, the Court consisted of the three judges, Dobie, John J. Parker, and Morris Soper, whose decisions in desegregation cases belied their backgrounds. Dobie was the son of a Norfolk school official, but he joined in when the Court held that the Norfolk schools could not pay less to black teachers.

Judge Barksdale won a Distinguished Service Cross in France. The VMI website has a picture of him in uniform. As the New York Times reported, at the 100th anniversary of the University of Virginia in 1921, Barksdale was part of the ceremony, presenting a plaque with the names of 80 U.Va. men who had died in World War I. Thereafter, he became a Byrd man during a short term in the General Assembly. Barksdale held the Circuit Court position previously held by his father. After Dobie went on the Fourth Circuit, Roosevelt put Barksdale on the District Court, with the approval of Glass and Byrd.